The Landsman Law blog is intended to be a general legal resource. Please read the below Disclaimer. I am an attorney licensed in Minnesota with the Minneapolis law firm of Hoff, Barry & Kozar, P.A. Contact me if you have any specific legal questions. I can be reached at slandsman@hbklaw.com or (952) 746-2709.

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Wednesday, May 15, 2013

The New Minnesota Marriage Law - "When Can I Get My License?"

******UPDATE****** May 31, 2013******

It appears that the Registrars of Hennepin, Ramsey and Washington counties have exercised their discretion interpreting the marriage law to allow applications for a marriage license between couples of the same sex be made starting June 6, 2013. This is one of the options available to the local registrars that is discussed in the original post below. As stated, I believe the statutes provide enough discretion with the local registrar to make this decision. According to the StarTribune, the Hennepin County Attorney issued an opinion for the local registrar that came to this conclusion. The process, as of today, is that an application for a license can be made on June 6, 2013 (in specific counties) and, if approved, the license can be obtained on August 1, 2013. This approach makes sense to prevent the counties from being overwhelmed with applications on August 1. Also, remember, as discussed below in my earlier post, a license obtained in one county is good throughout the whole State. One issue is fulfilling the promises of mayors to hold ceremonies on August 1 at 12:01 a.m. The service centers do not open until 7:30 or 8:00 in the morning, according the StarTribune:

Asked about how the delay in issuance might affect Coleman’s plans for midnight Aug. 1 ceremonies, Burns said the county is “exploring other options for making the licenses available before 8 a.m. August 1st.”

The decision of these county registrars means those that have planned wedding events on August 1, 2013 and that weekend can move ahead with their plans.

**********UPDATE****************

As you may know, amendments to the Minnesota Statutes to
allow same sex marriage were made into law when signed by Governor Dayton on May 14, 2013. The law will not take
effect until August 1, 2013. Unless a
new law states a different effective date, August 1 is the default for new laws
taking effect. I have received several
questions about the timing of applying for a marriage license and when the
ceremony can take place. Can the license
be obtained before August 1? The
question is possibly, depending on the local registrar.

Since the new law does not take effect until August 1, the
current state of the law still prohibits same sex marriage. As such, no license could be issued since it
is a prohibited marriage. Minn. Stat. §517.03. Under Minn. Stat. §517.08, it is the duty of
the local registrar to examine the parties applying for the license to
ensure the marriage is allowed under the law.
There is a 5-day “waiting” period for a marriage license. The purported purpose is to allow the
registrar time to conduct the due diligence that will satisfy him or her that there are no legal impediment to issuing the license.
If the registrar knowingly issues or signs a marriage license other than
as provided by Minn. Stat. §517.08 the parties aggrieved could be due damages
not to exceed $1,000.

So, what does the above mean since it is a fact that the law
will change August 1?

I believe the above grants the local registrar
discretion. If a same sex couple makes
application the local registrar will, within the “waiting” period, review the
application and representations made to ensure that the license is legal. This could be interpreted differently by
different local registrars. One could
say that since the current state of the law is a prohibition on same sex
marriage that a same sex couple will have to wait until the law becomes
effective on August 1. If that is the
interpretation, then applications could be made August 1 with the 5-day “waiting”
period. Meaning that the license will not
be issued on the 1st.
Alternatively, a local registrar could make the determination that since
the law is in fact changing August 1 that the application is valid. If a local registrar utilizes this
interpretation I believe that he or she would most likely not make the license
available until the law becomes effective – 12:01 a.m., August 1, 2013. I would think that most local registrars would be cautious, choosing the former, since there is a possible statutory damages claim if they get it wrong. Minnesota Public Radio is also taking the position that the local registrars will be waiting until August first to accept applications.

It should be noted that if a license is granted that it may
be used for up to a 6 month period anywhere in Minnesota. Minn. Stat. §517.08. So, if one registrar is willing to accept applications and, as a result, licenses may be issued on August 1, a couple could be married anywhere in the State. The most likely scenario is the one described by Minnesota Public Radio - applications made on August 1 with the chance of waiving the 5-day "waiting" period. Pursuant to Minn. Stat. §517.08,Subd. 1b(b), the 5-day “waiting” period may be waived by a judge in the case of
emergency or extraordinary circumstances. However, there are no definitions as to what constitutes an emergency or what circumstances would be extraordinary. As such, there is no guarantee that a waiver will be granted. Generally, I think the best bet is to plan on being able to obtain a marriage license, at the earliest, August 6, 2013.

Regardless of when an application can be made and when a license
will be issued, once the law is effective and a marriage license application is made, all applications will be subject to the same rules and regulations.

About Me

I am an attorney with the law firm of Hoff, Barry & Kozar, P.A. I represent both private and governmental clients in all aspects of residential and commercial real estate law and development, business law, estate planning, local government law and land use. You can find out more about me and my firm by visiting www.hbklaw.com.

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